An “Emergency” Arms Deal

By Diana Ohlbaum and Rachel Stohl

When it comes to the war in Yemen, Congress has made its feelings known: It wants to end any U.S. participation, as well as block the sales of weapons to the countries carrying it out. In April, both the House and Senate passed a bipartisan resolution that would end U.S. military involvement in the Saudi-led coalition. Lawmakers were concerned not only by the devastating humanitarian toll of the war, which has resulted in an estimated 233,000 deaths – more than half of which are children under five – but also by the lack of statutory authorization for U.S. military engagement there.

What did President Donald Trump do? He responded by upping the ante. He not only vetoed the joint resolution, but then declared a national emergency, citing tensions with Iran, so that he could bypass Congress and sell over $8 billion in weapons to Saudi Arabia, the United Arab Emirates (UAE) and other countries. It is safe to assume that these sales will bolster the Saudi-led coalition in Yemen, helping it prosecute the war against the Houthi rebels. American and British bombs have been directly responsible for the deaths of more than 200 Yemeni civilians, including at least 122 children, but this number only includes incidents where field researchers were able to identify weapons remnants, conduct interviews and analysis, and provide conclusive documentation. The actual number is likely much higher, and this arms deal will only push it up even more.

To do this, Trump announced on the Friday before Memorial Day that he was utilizing a rarely invoked “emergency” provision of the Arms Export Control Act (AECA), which allows the president to proceed with arms transfers without the legally mandated congressional oversight. The emergency declaration will allow 22 arms sales to nearly a dozen countries to go forward without a period for congressional review.

Some of the proposed sales had been blocked by Sen. Robert Menendez (D-N.J.) for nearly a year, including precision-guided munitions for Saudi Arabia and the UAE. Menendez had written to Secretary of State Mike Pompeo and then-Defense Secretary Jim Mattis in June 2018 of his concern that “our policies are enabling perpetuation of a conflict that has resulted in the world’s worst humanitarian crisis.” Placing a “hold” on arms sales is an informal procedure by which certain committee chairs and ranking members can register their opposition to proposed arms transfers, obtain additional information, and negotiate changes to or conditions on the package. Presidents typically respect these holds as a courtesy, since the procedure is not a matter of law, and because overriding them can provoke retaliation on other, often unrelated matters.

Other sales in the package bear no clear relationship to the emergency being declared about Iran. One would permit the transfer of bombs from UAE to Jordan, and another is designed for use in UAE counterterrorism operations. Some involve manufacturing and coproduction agreements, which would take years to bear fruit and would benefit countries that are not directly affected by heightened tensions in the region, such as Spain, France, Italy, Korea and Australia.

The AECA lays out the rules for making arms transfers and establishes regulations, processes and procedures for their approval. Under the law, the executive branch (through the State Department) must formally notify Congress of a potential major arms sale, if it’s valued at $14 million or more, at least 30 days before finalizing a transfer agreement or issuing an export license. Certain exceptions are made for close partners and allies – including NATO Member countries – in which the value threshold for congressional notification is higher and prior notice is not required until 15 days before concluding an agreement. With this advanced notice, Congress can pass legislation to modify or block a proposed sale, in the absence of which a potential weapons transfer is generally free to move forward.

The law also allows the president to waive the 30-day review requirement by notifying Congress that “an emergency exists which requires that consent to the proposed transfer become effective immediately in the national security interests of the United States.” This emergency provision requires the president to provide a detailed justification “of the emergency circumstances which necessitate immediate consent to the transfer.”

Though not invoked regularly, the provision in the AECA was also used in the 1970s and 1980s to push through arms sales to the Middle East. In 1979, the Carter administration used the provision to transfer aircraft, tanks, armored personnel carriers and training to Yemen, following attacks on North Yemen by forces of South Yemen using weapons supplied by the Soviet Union.

Today, the Trump administration is claiming that the situation with Iran is so tense, there is no time for Congress to review these controversial sales. Yet its memorandum of justification is mostly a recitation of old news, even admitting that the threat posed by Iran’s actions have “long been acknowledged.” It cites only “a number of troubling and escalatory indications and warnings from the Iranian regime” and a recent announcement in Houthi-controlled media of “the Houthis’ intent to target Saudi ARAMCO infrastructure” as indications of a heightened threat to U.S. interests. But, these nebulous signs of Iranian hostile intent arose against a backdrop of escalatory measures by the Trump administration, which the U.S. military and Intelligence Community warned would have consequences.